Wednesday, November 29, 2006

Back on the agenda: Scottish Independence

After a few years of turmoil and worse-than-expected electoral performances from the Nationalists, the issue of Scottish independence seems to be firmly back on the agenda, with a recent Scotsman/ICM poll putting support for separation from the UK at some 51% - its highest level since before devolution. Doubtless this is in large part the Scottish manifestation of the UK-wide disillusionment with Labour in general and Blair in particular, with the increasing support for the Tories that is evident in other areas of the United Kingdom not really a serious option in its northernmost nation. This has been further bolstered by the release of previously secret government documents from the 1970s, in which the then Labour Government was advised by a leading economist that oil revenue would give an independent Scotland one of the strongest currencies in Europe and an "embarassingly" large tax surplus. The report was supressed by the Government of the day, fearing the almost inevitable surge in support for the Scottish Nationalist Party, and was only made public a few months ago under freedom of information legislation. Many are likely to feel, not without significant justification, that the decision to do so was as cynical as it was fundamentally undemocratic, particularly as the first devolution referendum, held at the end of the decade, failed to achieve the qualified majority required by legislation.

Leaving aside the democratic significance of the fact that the recent poll suggests that 51% of Scots now favour independence, it is worth having a brief look at the contours of the current debate, with potentially crucial Scottish Parliament elections approaching next year. As Simon jenkins has noted in the Guardian, some fairly big guns from the UK Labour Party, including Blair, Brown and Reid, have been in Scotland recently to make the case against independence. I'm far from convinced, however, that Blair's chosen line of attack will be effective:

What I think it's about is the attempt by the SNP and others to say you're only truly Scottish if you're making the case for independence, but that's rubbish... You can be Scottish and British.

We share a currency, we share armed forces, we share social security systems - you rip Scotland out of the UK and you lose those benefits, and you will end up with an uncertain economic future with less power for people in Scotland to effect the big changes in the world.

the trouble with these is that, while the first just doesn't ring true, the second is likely to be counter-productive in the prevailing Scottish climate. The claim that "real" Scots support independence and reject "Britishness" altogether is an attempt to win support by making the position of the enemy extreme and unpalatable to most; it is not, to my knowledge, one that finds much support in the official rhetoric of the Nationalists, or, indeed, of the other pro-independence parties represented in the Parliament, namely the Socialists and the Greens. As argumentative strategies go, it is fairly transparent, and unlikely to be successful as such.

In terms of the second part of his argument, Blair would do well to remember that Scotland overwhelmingly voted "old" Labour throughout the Thatcher years - it always was, and remains, a considerably more left-wing nation than its southern neighbour, and the directions taken by New Labour in pursuit of the middle-English vote have not always been welcomed in the North, with the Scottish Labour Party being tainted by association if not by actual complicity. Nowhere is this clearer than, for example, the controversy over the war in Iraq; unpopular enough in England, but even more so in Scotland. Long used to the risk of having their voices lost in Westminster, many the Scottish electorate may well decide that having less power internationally is infinitely preferrable to having "big changes" effected in the world, of the type seen most dramatically in Iraq but readily evident elsewhere, in their name but without their consent.

Blair is correct that it is "up to them to make the argument" about the positive benefits of the UK; however, the current strategy seems to be a decidedly risky one. Of course, no decision about whether to remain within or dissolve the Union is without risks, both economic and political; but, as the impressive weight of expert opinion on both sides of the question suggests, these can only really be assessed in hindsight. In any event, it seems unlikely in the extreme that the simple act of secession would itself determine the future prosperity of either Scotland or England, in the manner that some on both sides of the debate seem to suggest; rather, such would depend in very large degree on the choices made subsequently. In terms of the current debate, in the light of forthcoming elections, we can but hope that, this time around, the Scottish people will be entrusted with all of the facts available in order to make a properly informed choice on this issue of central importance.

Benedict XVI does not think like Ratzinger!

I am glad to see that the Pope has expressed positive views on the entry of Turkey in the European Union. Ratzinger, the Cardinal, was extremely negative up until last year.

This is positive. Let's see how far Turkey can go now. The European Union itself seems to have some old prejudices, which will not be swept away easily.

Tuesday, November 28, 2006

The Legal Research Society ...

... is a nice Blog you may want to have a look at.
Have a look here

The Pope in Turkey

Benedict XVI is visiting Turkey in these very hours. He says: 'this is not a political trip.' What is it then?

John Paul II and Benedict XVI have vehemently insisted that Turkey should not join the European Union. They believe that Europe should be a christian club. This is not
an implicit deduction, this is the point Ratzinger makes quite explicitly in his book 'Whitout Roots.'

Now, the question I would raise to the Pope is: would you have anything against the enlargement of Europe to Turkey?

I stongly believe that the only possible way forwards is by letting Turkey in. It would send a very important sign to all the Muslim Europeans who are now struggling in Europe.

It would show as well that Europe is not, and cannot only reduce itself to, a Christian club. Europe is deeply plural; its christian roots are real, but only a side of a much more complicated picture

Sunday, November 26, 2006

Berlusconi Faints during a Public Meeting

Few days ago Berlusconi said he would not run anymore for a post of Prime Minister or President.

Today, while speaking to a crowd of young supporters, he fainted and had to be carried away.

As said many times in this blog, Berlusconi is an old man, despite his youthful look (mainly due to cosmetic surgeries). He has worked very hard and he has been under an incredible amount of pressure in the last 40 years.

It is time to leave and take it easier. And he probably knows. It would not be easy in any event to convince his allies to follow him blindly as they did in previous occasions. It is not a total coincidence that he fainted just after mentioning his efforts to bring all the parties of his coalition under the same umbrella of a big 'party of liberty.'

Many times before in this blog I stressed the idea that the greatest pressure for Berlusconi comes from his 'allies', his 'friends' and not from the folkloristic opposition led by Mr Prodi.

The gist of my position is that Berlusconism (his philosophy on how to rule the party, the coalition and the country) is outdated and does not fully convince his
closest allies (it has never convinced the opposition and the remaining half of the country). Given this basic lack of internal legitimacy, Berlusconi is faced with a huge power struggle that has consumed him in the last five years of government.

It would be wiser to give up this frantic competition. Italy needs a renewal once again. A serious one. Despite what Berlusconi thinks and would like italians to believe, he is a representative of the old guard. He'd better believe it.

Thursday, November 23, 2006

The Vatican and the Preservative

The Vatican has gathered theologians and scientists to review its present position.
Would anything change or is it just a smoke screen to hide the unwillingness to change?

You can find an interesting report here.

Wednesday, November 22, 2006


Today the Grand Chamber of the ECHR is hearing Evans v UK, a very important case (I believe). More on its importance coming soon.

Here's a press release

Summary of the facts

On 12 July Ms Evans and her partner J started fertility treatment at the Bath Assisted Conception Clinic. On 10 October 2000, during an appointment at the clinic, Ms Evans was diagnosed with a pre-cancerous condition of her ovaries and was offered one cycle of in vitro fertilization (IVF) treatment prior to the surgical removal of her ovaries. During the consultation held that day with medical staff, Ms Evans and her partner J were informed that they would each need to sign a form consenting to the treatment and that, in accordance with the provisions of the Human Fertilisation and Embryology Act 1990 (“the 1990 Act”), it would be possible for either of them to withdraw his or her consent at any time before the embryos were implanted in the applicant’s uterus.

Ms Evans considered whether she should explore other means of having her remaining eggs fertilised, to guard against the possibility of her relationship with J ending. J reassured her that that would not happen.

On 12 November 2001 the couple attended the clinic for treatment, resulting in the creation of six embryos which were placed in storage and, on 26 November 2001, Ms Evans underwent an operation to remove her ovaries. She was told she would need to wait for two years before the implantation of the embryos in her uterus.

In May 2002 the relationship between the applicant and J ended and subsequently, in accordance with the 1990 Act, he withdrew his consent to the continued storage of the embryos or use of them by the applicant.

The applicant brought proceedings before the High Court seeking, among other things, an injunction to require J. to restore his consent. Her claim was refused on 1 October 2003, J having been found to have acted in good faith, as he had embarked on the treatment on the basis that his relationship with Ms Evans would continue. On 1 October 2004, the Court of Appeal upheld the High Court’s judgment. Leave to appeal was refused.

On 26 January 2005 the clinic informed the applicant that it was under a legal obligation to destroy the embryos, and intended to do so on 23 February 2005.

On 27 February 2005 the European Court of Human Rights, to whom the applicant had applied, requested, under Rule 39 (interim measures) of the Rules of Court, that the United Kingdom Government take appropriate measures to prevent the embryos being destroyed by the clinic before the Court had been able to examine the case. The embryos were not destroyed.

The applicant, for whom the embryos represent her only chance of bearing a child to which she is genetically related, has undergone successful treatment for her pre-cancerous condition and is medically fit to continue with implantation of the embryos. It was understood that the Bath clinic was willing to treat her, subject to J’s consent.


The applicant complains that requiring the father’s consent for the continued storage and implantation of the fertilised eggs is in breach of her rights under Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights and the rights of the embryos, under Article 2 (right to life) .


The application was lodged with the Court on 11 February 2005. A Chamber hearing on the admissibility and merits took place in public in the Human Rights Building, Strasbourg, on 27 September 2005.

In its Chamber judgment of 7 March 2006 (press release No. 125, 2006), the Court held unanimously, that there had been no violation of Article 2 concerning the applicant’s embryos; by five votes to two, that there had been no violation of Article 8 concerning the applicant; and, unanimously, that there had been no violation of Article 14 concerning the applicant.

The Court also decided to continue to indicate to the United Kingdom Government under Rule 39 that it take appropriate measures to ensure the preservation of the applicant’s embryos until the Court’s judgment became final or pending any further order.

The case was referred to the Grand Chamber at the applicant’s request.

Tuesday, November 21, 2006

Berlusconi retires from politics

Is this ground breaking news true?

We can only hope so! So many times before, I have said that Berlusconism (that is his own brand of political thinking) had come to an end because it was not even able
to convince its allies, not to mention its opponents.

Berlusconi, arguably an old man (70 years old), cannot possibly have the strength to run government again, knowing that he would do so against everyone.

Plus, his main purpose (ie, to eschew justice) has been more or less achieved. He can now enjoy his retirement. His Mausoleum is ready in Macherio. Good bye Silvio.

Sunday, November 19, 2006

The Queen... a good movie for those of you interested in british constitutional politics.
Helen Mirren is extraordinary in her imitation of the Queen. Tony is fantastically cheesy, just as in real life.

Here's a good review of the movie by Andrew O'Hagan.

Friday, November 17, 2006

Justice for Hedgehogs

I am a fox, I don't like that (See I. Berlin, the Fox and the Hedgehog).
But for those of you who feel close to Hedgehogs, here is Dworkin's recent paper presented at the NYU Colloquium of Legal Philosophy.

This is likely to be the basis of Dworkin's next book, so have a happy preview!

Thursday, November 16, 2006

Italy at the centre of Getty's 'decadence'

Recently the Getty Foundation had several problems. An interesting piece on the NYRB
presents some of the recent controversies.

But the most important issue to solve for the Getty is its legal war with Italy that is claiming back most of the pieces coming from the peninsula. Here's a nice report of the recent legal developments.

Thursday, November 09, 2006

After the American Elections: What Now?

It is official: Democrats will assume control of both chambers in the next Congress, ousting the Republicans. Naturally, pundits have begun to ponder what this change will mean. It is certain that George Bush’s final two years as President will be dramatically different than they would have been with continued Republican control of Congress. While it is impossible to predict what will happen over the next two years, here are some of the major policy questions Bush and the Democratic majority in Congress, led by Nancy Pelosi in the House and Harry Reid in the Senate, will grapple with:

Iraq. The most urgent policy question facing Bush and Congress, and arguably the issue that most influenced voters, is the mess in Iraq. Pressure for a change in strategy has been building for some time, and with the decisive defeat for Republicans on Tuesday, the resignation of controversial Secretary of Defense Donald Rumsfeld and the expected recommendations from the Iraq Study Group (a bipartisan group of wise men asked by Bush for fresh ideas), change is imminent. However, will it be a gradual withdrawal of the bulk of American troops from Iraq, as the Democrats and most Americans seem to favor, or a more hawkish policy featuring troop increases as Republican Senator John McCain favors?

Foreign policy/National Security. Democrats have promised to demand greater accountability from Bush, especially in his prosecution of the “war on terror.” There could be clashes over the President’s penchant for secrecy and his conception of executive power. Other potential flash points include China – which Pelosi and other leftist Democrats criticize for its sorry human-rights record – and the President’s preference for free trade, which some Democrats claim has led to the loss of American manufacturing jobs and lower wages.

Immigration. The President and Congress may be able to work together on immigration reform. The President favors legislation that many Democrats can probably live with. However, Bush’s room for compromise may be restricted by conservative sentiment, which advocates a much harsher approach to illegal immigration than Democrats.

Minimum wage. Another issue that may offer common ground is the Democrats’ promise to raise the minimum wage by about $2 per hour. Bush has signaled quietly that he is open to minimum wage legislation. Many business leaders are not, however, and this issue may also expose cleavages in the Republican party.

Health care. President Clinton failed miserably in his attempt to craft legislation for universal health care. Most Democrats favor some kind of expansion of health care (roughly 50 million Americans are not covered) and party leaders have made noises about addressing the issue. However, the form health care legislation would take is unclear. Republicans and business leaders will be skeptical. This could be an issue that provokes confrontation.

Senate Confirmation. The Constitution gives the Senate the right to “advice and consent” on Presidential nominations for federal judgeships, including the Supreme Court, and high-level appointments like ambassadorships. Future appointments to the bench, especially to the Supreme Court, could also lead to confrontation between Bush and the new Congress, as activists on both sides of the political spectrum care deeply about judicial appointments. Judicial appointments, more than any other issue, provide the battle ground for America’s culture wars.

Right now, there is an air of conciliation about Washington. Both parties have asserted their desire for bipartisanship in the next Congress and Bush has met with Pelosi and Reid to examine potential areas of agreement. However, Democrats are angry after their time out of power and Bush has shown little inclination for compromise in the last few years. Look for initial amity but increasing rancor as both parties remember how much they disagree about the fundamental issues.

TransAtlantic Relations After Bush

Bush's defeat comes as a breath of fresh air in TransAtlantic Relations. In the last six years, the relationships between Europe and the US had progressively worsened, almost to a breaking point.

It is obviously not in our interests and we have to stress the importance of healthy and sincere relations between the two sides of the Oceans. Europe has to do its own mea culpa as much as America.

We are both trying to come out of a number of serious economic and political issues. The forthcoming two years will be extremely important in order to move on and reform on both sides. French presidential elections are coming up soon (April 2007). Then Blair will leave (around that time, after 10 long years). Bush is on the way out and it is not going to be easy in his last two years. Germany and Italy with their broad, fragile, coalitions are open to political change at any moment.

The direction to take must be that of strong Transatlantic Relations. I do not see any other alternative.

Monday, November 06, 2006

The Only Possible Thing to say: No to Death Penalty

I hope that Europe will stick to its position at least on this one. No to the Death Penalty, not even for Saddam Hussein, Mussolini or Hitler.

We have abolished the death penalty all over Europe. It is a matter of our principles, and it clearly distinguished us from the US, even if we agree with them on many other things.

But Europe must speak up, and must do so on issues of principle such as this one. It would be absolutely incoherent to be absolutely against death penalty at home (Europe) and to accept it abroad, wherever this happens.

At least on this one, we can speak of our objective stance on an important issue.

Europe, Religion and Cosmopolitanism

The seeds of cosmopolitanism are present in both the liberal and the Christian traditions. But they both fall short. The universal pretension of Catholicism, for example, stumbles against the practice of enlargement of the European Union. When faced with the prospect of integrating Turkey, the Vatican and other conservative Christians in Europe responded with the metaphor of Christian roots and the necessity to maintain an homogenous society. They want to establish a Christian club, to which we can only enter if blessed by our Christian traditions. It is in essence a race based theory of belonging. Were the EU to accept this perspective, it would prove once again extremely un-European, which is what explains its present stagnation. The EU presently lacks a vision and therefore also lacks high cosmopolitan) standards by which it should judge its politics.

Potentially, the ethics of citizenship as put forward by Rawls/Habermas would have a very cosmopolitan pedigree… the fact of pluralism is central to Rawls. This is what makes him shift from a theory of justice to political liberalism. But political liberalism, even if it is explicitly dealing with the issue of what to do under conditions of unrelenting pluralism, does not give a satisfactory answer as we saw. Bracketing comprehensive views, and relying on a consensus which proves to be much too thin, cannot secure a firm ground for the progressive development of society. A truly genuine cosmopolitan vision can only happen if we let it emerge from the fact of pluralism. We should not be afraid of that. It in fact constitutes an invaluable yardstick with which we can assess the failure of the national communities to develop at the pace of their plural population. It can only in the long term sanction the end of community rooted ethics of citizenship and give way to a truly cosmopolitan ethics, which is an ethics of citizens of the world.

Unfortunately, the way liberal democracies work at the present moment reveals a very serious deficit as far as the universalisation of certain rights standards are concerned. There seems to be a bipolar attitude toward fundamental rights. As long as they are domestic rights they need to be protected, but then as soon as they go beyond the national boundaries there is a troubling hesitation.

A good illustration is the right to free expression as applied to the Mohammed cartoon saga. Imagine that internet was not available. The mohammed cartoons would have been the object of a domestic controversy. In this case, it is easy to imagine that freedom of expression for the journalist would have been protected. Probably, many people would have wanted to protest against the poor quality of those cartoons, but the saga would have ended there. Now, in our real world those poorly conceived cartoons were easily available to nearly everyone in a short amount of time. Does this mean that freedom of expression should be curtailed? Many people thought so. I disagree. The right to satire is a fundamental aspect of freedom of expression and we cannot exclude it simply because it is likely to upset some people.

Both Liberals and Religious people ought to think outside their ideological boxes. Global issues as migration, global poverty and global warming need to be addressed from a cosmopolitan viewpoint. Anything else is bound to fall too short.

Thursday, November 02, 2006

Without Roots: Europe and the Pope

The Catholic Church is trying to tackle the issue of European Roots in order to provide a more attractive model of a Christian way of living. After WW2, Europe became increasingly disengaged with the model of life offered by the Church. The truth unveiled by the Church appealed fewer and fewer people. European societies showed a decreasing strength in their beliefs, and this corresponded to an increased belief in one’s own capacity to frame a good life for oneself.

Ratzinger has embarked on a crusade against relativism. He claims that the origin of the secular philosophy goes back to the French Revolution. From that moment on, Europe engaged in a project that involved the increasing role of technology and science in public life, and relegated God in the private sphere. The separation is that between the laique and the Catholichristian society. The former had a formidable success represented by technological and scientific progress. But that success came with a heavy price. The system of values on which the European polity has was founded collapsed. Ratzinger feels that Europe as it is does not have a future nor does it constitute a model for other polities. His harsher criticism comes at this point: ‘Europe’s soul comes from the material world; morality entirely depends on circumstances and must be adapted to the ends of the society.’ This is the most dangerous aspect of European relativism and this crisis needs to be tackled somehow.

What does the Pope offer instead? Interestingly, the ‘new’ foundation proposed by Ratzinger has a very old name: dignity. This is a name for a foundation of morality that must take precedence over any other political principles. Dignity is inviolable because it comes from God and as such it cannot be discussed or endangered by human actions. Dignity translates in three notable spheres for Ratzinger: Respect for life, which corresponds to a Catholic doctrine of bioethics. Second, respect for the family and its founding institution –Marriage. Third, respect for the sacred, which constitutes also a limit to freedom of opinion.

Unfortunately Ratzinger forgets to mention the poor record of the Catholic Church as far as respect for women and respect for other minorities are concerned. I have in mind some basic examples of the evils produced by its very institutions. In particular, the Catholic Church is unable to offer a model of good life that inspires because it is so out of touch with some basic issues. Think of the AIDS pandemic made easier by the lack of use of contraceptives, as demanded by the Vatican. The same Church, moreover, did very little to reconsider the place of women within the society (and within the Church). Its sexual morality in general is unfit to give positive messages to a society where sexual morality has evolved hugely.
Finally its insistence on heterosexual couples does not acknowledge a basic fact of life: We end up in a paradoxical position where both religion and liberalism claim to go back to the same ethical foundation –dignity—without really agreeing on the very definition of that foundation. From the religious viewpoint, dignity means a static interest of every individual being granted by god and as such inalienable and inviolable. In the liberal strand of thinking, dignity means something more dynamic –autonomy (which translates as freedom of choice)—although some authors identify a more static element to it which lies at the core of the definition of human being. The dynamic element is Liberty, and the static element is Equality. There is little ground for a meaningful dialogue thus far.

Wednesday, November 01, 2006

Rights, Religion and the Polarization of our Societies

Rights are the central notion that contributed to the success of secular liberalism. From the 60’s Supreme Courts around the world have implemented a liberal manifesto based on the idea of individual autonomy and protected by the right to decisional privacy. From a liberal viewpoint, this development could not be more welcome. Conventional sexual morality has been swept away; in its place, supreme courts have entrenched individual liberty. In the USA this started with Griswold, which invalidated statutes prohibiting the use of contraceptives. Moving on from that we encountered the famous Roe v Wade, which set out a new legal framework for abortion. This was probably the apex of the liberal manifesto, but success was followed by deep opposition from the religious camp who gathered together against the 1973 decision of the Supreme Court.

The point that I want to stress here is the highjacking of ethics by law. In the last 40 years, representative institutions around the world denied responsibility for dealing with pressing ethical issues. Most of the time, as a result, supreme courts had to take up that responsibility in high profile cases that shaped the face of ethics in western countries. By deciding on issues such as abortion, euthanasia, stem cell research, assisted procreation and others, supreme courts begun to police the boundaries of life and death; in other words, they started intervening on the definition of the meaning of life and its quality. This was such an impressive movement that some prominent scholars gave Supreme Courts the appellative of ‘Forum of Principle.’ By this they clearly meant that Supreme Courts were the place where morality in action was taking place. In the judicial forum, more than anywhere else, important deliberations and decisions on crucial ethical issues were taking place.

There is something to be said in favour of this development. The society shook off entrenched conventional belief on how to live and how to live together. While the rights revolution was taking place, many were the people supporting it. It was by any means a popular revolution and met with great enthusiasm in the more progressive part of the society. I am certainly not the one who is going to disapprove of such a progressive development. But I have to acknowledge nonetheless that this liberation of the society came with a price which is becoming to appear only now. The legalisation of ethics entailed the polarisation of the society. The two poles are roughly the religious and the liberal poles. The liberal pole favours a progressive dismantling of conventional ethical standards. In their place they favour an increase of freedom of choice and pluralism. The religious pole favours the respect for some ethical guidelines which have characterised the society for a long time.

Law polarises ethical issues for a simple reason. It deals with every issue in a binary logic. On one side, one argument. On the other, the counterargument. They exchange their views and then a winner is declared. Most of the times, in the last, 40 years the winner in the forum of principle was the liberal progressive. The loser was the conservative religious. This could not happen without a response. Thus conservative organisedc themselves to serve the religious community, in particular those religious people that felt a huge blow from the liberal court. The political world decried the tyranny of liberal progressive values and the manifesto was always an anti Roe v Wade manifesto. Presidential elections took place on very few issues and abortion often played the role of the deciding point. Many voters, generally inclined to vote for democrats, would vote for republicans to deliver on the promise of an anti-abortion law. Politics in turn became increasingly obsessed with judicial power and one of the critical domestic issues nowadays concerns the nomination of justices at the supreme court. Bush managed to nominate two of them. Alito and Roberts, two justices that promise to carry further the conservative anti-revolution.

In Europe the rights revolution was more subtle. Deliberative institutions, much as in the USA gave up their responsibility as to the decision of pressing ethical issues (they were much too concerned with economic issues). The progressive revolution took place at times through judicial intervention and at times through alternative means. For example, in Italy, liberal-progressive reforms took place through Referendum. Italy is one of the few countries in the world to have a normative referendum, that is a popular consultation that has the power to abrogate valid statutes. Thus, abortion law, divorce law, and many other issues have been decided through Referenda and the parliament simply had to bow to the popular will and enact new laws with this new orientation. In some other countries, constitutional courts played a corrective role. In France for example, the conseil constitutionnel empowered itself in 1971 to control the constitutionality of statutes against the background of a range of different bills of rights from the past. This way, the conseil constitutionnel assisted the parliament in carrying out the necessary reforms in a progressive and liberal direction. In Germany, the BVG played a robust role in enforcing the rights revolution; so much so, that the German constitutional court also required the institution of the European Community to do the same.

But the characteristic trait of Europe is probably the intervention of another supranational institution, the ECHR which sits in Strasbourg. European states gave up part of their sovereignty as far as their ethical reforms were concerned. At their place, that is instead of national parliaments and national courts, a supranational court was to intervene on very sensitive issues. The ECHR thus had a number of landmark cases on freedom of expression, right to privacy, protection against torture and inhuman treatments, right to life and many others. Nowadays, it increasingly intervene on matters of religious liberty. In particular, it has to deal with difficult issues concerning muslim scarves in turkey, and other similar problems. European ethical standards are ultimately decided in this forum. This is convenient from various viewpoints. National states do not have to bear responsibility for these difficult issues. Individuals are pleased since they have yet another judicial appeal after having exhausted national remedies.

Europe, which is sociologically a secular society, does not face as in the USA a polarisation between the liberal and the religious society. Instead, the polarisation which becomes increasingly important is between the secular Europeans and the religious others, in particular Muslim people. There seem to be an increasing inability to engage with the religious minorities; in turn, religious minorities feel increasingly misrepresented by the neutral liberal and progressive European States and Institutions.

On top of this gap, there’s a growing dissatisfaction on the part of both national states and the ECHR. The latter continuously laments the impossible workload under which its institutional apparatus is crumbling. National states, in particular Britain, want to bring rights back home as they become dissatisfied by the supranational decisions. It is within this context that the European Court of Human Rights seem to be prepared to increase the national margin of appreciation and acknowledge the role of representative institutions when they actually intervene on certain ethical issues. A good example is the case Evans v UK, decided by the fourth section of the ECHR. This case concerned an issue of in vitro fertilisation. A woman, unable to conceive naturally, sought medical advise to start that procedure. Before implantation of the embryo, however, Mrs Evans is diagnosed ovarian cancer. Doctors advice her to undergo cancerous treatment before proceding with the ferilisation. She agrees to that, which means that the embryos formed with her eggs and her husband sperm are the last opportunity to bear a child. Mrs Evans worries about her future but her husband insists that he will always be with her. Two years go by and Mrs Evans, who has had her ovaries removed, is now ready for the embryo implant. Her husband, however, has changed his mind and does not want anymore to give his consent to that process. Law is on his side as it is clearly stated that each donor is allowed to change his mind up to the moment of implantation. Mrs Evans argues that her husband has created a legitimate expectation and as a consequence he cannot withdraw his promise. In this case, the ECHR acknowledges the existence of a dilemma and a human tragedy on the part of Mrs Evans. In a highly unusual move, however, the ECHR refuses to engage in the balancing of the competing interests at stake. Instead, the European Court sticks to the ‘bright line’ drawn by the UK parliament.

It is probably early to draw conclusion from this decision. But it does seem to point to a situation in which the European Court feels unprepared to set once more European ethical standards for everyone. On the 23rd of November 2006, the ECHR will gather in its more important formation, the Assembly, to review this decision. It is possible that the ECHR will insist on its leading role as the ethical setter. This would not be surprising. To the contrary, it would probably point to the present European ethical crisis. Given these circumstances, Europe may prefer to maintain the statu quo, but how long is this possible? What kind of event is Europe waiting before rethinking its ethical foundations?
Law, in particular rights adjudication, polarises a society if it takes too many responsibility in relation to ethical dilemmas. Instead of making dialogue possible it excludes it when stretched beyond a limit. Representative institutions must be more responsible; if they avoid deciding those issues, they must explain why and how we should deal with them more adequately.

The mythology of international judicial fragmentation

An entertaining post, well worth a read, over at Opinion Juris, where Cesare Romano sketches the parallels between the rise and fall of the International Court of Justice and the theme of usurping the father-figure in ancient Greek mythology. The plethora of fragmented judicial bodies, from the WTO dispute settlement mechanism through international criminal tribunals to regional entities such as the ECJ and ECtHR have rebelled against the ICJ's attempt to subordinate them and retain its own dominant position in the international judicial heirarchy, eventually "emasculating" the body that begat them.

One thing is missing from his analogy, however; in the Greek mythology he refers to, the sucessful usurper proceeded to construct a new heirarchy, with himself installed at its summit. Some such structure seems inherent in the notion of order, and legal order in particular; we must ask, then, if we are to condemn the ICJ as "already passé", who is to become the new dominant actor on the global level? The obvious answer is not, for many, a particularly palatable one, and yet there is only one institution of global reach with a strong (indeed, compulsory) judicial mechanism: the WTO.

With this in mind, perhaps we can retain the hope that reports of the ICJ's demise have been greatly exaggerated. Undoubtedly, it is an institution in dire need of serious reform, but the all-too-ready willingness to confine it to the textbooks of international legal history itself creates the risk, which Romano himself fears, that the dominant role of general interpreter of international law, the apex of the fragmented international judicial system, will be assumed not by the best suited, but simply by the best placed. In the current global climate, and for the foreseeable future, it is only the perceived necessities of economic logic that have the strength to get states to commit to compulsory dispute settlement measures.

The fear, of course - and one that Romano shares - is that in getting rid of a tribunal with general responsibility for, and competence in, all aspects of international law, we will allow a single conceptual framework to dominate and interpret all others. The ecomomic mindset is already extremely influential in global affairs; to allow it to come to dominate in law itself would be potentially disastrous for the diversity of viewpoint and in-depth specialisation that has driven the fragmentation process that we have witnessed over the past few decades. This specialisation has brought a new level of maturity and richness to the international legal scene; it is something that we should be looking to preserve to the greatest degree possible whilst retaining a sense of order.

There are certainly no shortage of examples, from ancient or far more recent history, of cases in which people have been too quick to welcome the demise of an old ruler without full awareness of who will rise to take his place, and of the new heirarchical structure that will be initiated, and have come to regret the speed with which the old was jettisoned to make way for the new. It may be, of course, that the ICJ is simply too far gone to rescue; if that is the case, however, this is a time for the utmost vigilance as to its successor, not for either the triumphalism or complacency with which news of its demise is often greeted.

Romano's short piece, however, is neither complacent nor triumphant, and provides us with a vivid new way of imagining both the history and the future or the international judicial system. Like I said, well worth a read.